The chief goal of the chapters which follow is to understand what Germans meant when they spoke of their freedom in the era between the Thirty Years’ War and the arrival of the French Revolution in the Rhineland a century and a half later. To answer that, of course I look back at that time period, and back further to earlier ideas, institutions, and trends which influenced it such as older myths, ideas, and state structures.
But here by way of a high-level orientation, it may be helpful first instead rather to look forward, from the period ca. 1648–1789 toward the era of the modern liberal state.
In political science and economics, personal freedom has been closely tied to economic development.1 But in the late eighteenth century, the linkage was rather looser and less certain. Some writers in Germany did tie freedom and economic growth together – for instance the German Physiocrats, importers of Adam Smith, and critics of monopoly. And there were also other schools of liberal thought – understood as writers who theorized the value and importance of freedom as one of the highest goods in society. For Romantics like Novalis or Goethe, personal freedom was the germ for self-realization. Wilhelm von Humboldt was unusual in combining both foundations – freedom both led to prosperity and enabled human flourishing. There were also ancient-constitutionalists like Justus Möser for whom imperial federalism and old law were the guarantees of republican freedom.
This book suggests that there was also a lot of important, as yet little recognized protoliberal thought in Germany, or perhaps variously liberal, semi-liberal, and illiberal thought, which contributed to the foundation of the later liberal legal order. Modern liberal legal systems, defined as focusing preeminently on preserving individual freedom however understood, are characterized by universalism and uniformitarianism.2 That is, their regulatory power reaches everywhere and they apply one set of rules and procedures to all civil subjects; there are no special jurisdictions and no status privileges. By contrast, rather than universalism, an early modern German state might have a number of carved out jurisdictions within it controlled by special old right, so-called patrimonial courts. Rather than uniformitarianism, early modern states typically recognized and/or created special privileges great and small. The legal order of, say, the western German imperial estates in Hesse, Solms, or Frankfurt am Main did not as such treat all legal subjects uniformly. States prized their collective autonomy, peace, order, power, and prosperity far more than they did their individual subjects’ freedom.
Still, illiberal legal conditions were giving way to more liberal ones during the eighteenth century. Regard first the considerable, widespread substantive inequality among people’s material wealth and social estate. Yet in the second half of the eighteenth century, estate-based legal status was becoming desiccated into the concrete order of property rights. Most estates were increasingly being transformed into transferable wealth (with transferable legal privileges such as tax freedom or right of higher first court instance) in the second half of the century. Privileges, even those of rulers and great lords, were regarded by jurists as “odious” and were interpreted narrowly.3 The concrete order of rights was governed almost exclusively by open-market transactions. I use the latter term in a somewhat novel way to refer to voluntary transactions between free actors, in cash or through new contract, with ever fewer and weaker unwind conditions or restrictions (e.g. retraction, estate restriction, fief, custom, or exclusions based on gender or religious estate). Protections of old lordly rights such as hunting, serf-lordship, and family property were withering away under the pressure of modernizing, universalistic civil law, proceduralism of possession as the highest form of title, and nigh-indefeasible financial law. Consent was a powerful element in law and most things could be consensually transferred to others. “Every right and every action can be ceded to someone,” wrote Gottfried Fibigius in 1638,4 and everyone’s money spent as good as everyone else’s. Further, rules of possession and prescription strengthened all this by interpreting dubious or obscure complexes of right and obligation as based on consensual transactions i.e. well-formed property rights within liberal legal order. Procedural equality was also increasingly the order of the day, though by no means universal. Adjudicatory institutions like the princely chancery in Marburg and the Hessian High Appellate Court treated individuals as formally equal subjects at law, enjoying to a great extent equal application of universalistic black-letter civil laws and procedures.
This may all sound rather pat – as though we just happen to have noticed this protoliberal political-legal system quietly growing up in some of the German lands (the Hessian and Rhine-Main region to be exact). No, anything but. I think we can indeed make out a protoliberal legal order, but for all that, it was an unstable order, if that is not an oxymoron, constantly changing, and I do not think that there was a very clear trend line of change in a uniform direction. Also, many diverse forces were at work. Still, I have developed three main interpretive perspectives on causality in studying these phenomena, and I alternate between them. To use concise, colorful terms, these three views of causality could be called anarchism, systems theory, and managerialism, although these are not meant as technical terminology.
One way of thinking about causality, favored by many current historians, could be called (perhaps too dramatically) anarchism. By this I merely mean that people acted for lots of different, diverse reasons, not all of which can be reconstructed. When push comes to shove, people often seek power, freedom, or escape from negative outcomes. The scattered debris of people’s actions and ideas might, partially, get aggregated into later ideas and structures. But much gets lost. Sometimes people seem to have been moved, indeed driven, by ideas, whether abstract or personal. Much of the time we can assume self-interest as a powerful motive. In fact, ideas and interests usually grow together in symbiosis, the bond forming at 98.6° about midway between the human brain and heart.5
Sometimes people play roles in pre-established games or designs of controlling principals such as projectors or state ministers. This leads to the second interpretive perspective I often take, systems theory (loosely along the lines of Talcott Parsons), here meaning to look for ways that people’s historical actions and ideas cohere into systems. In this way, I sometimes model activity in terms of games, grammar, and institutions, which are all systems.6 I fit historical elements in this book variously into systems of interaction among independent agents (e.g. the competitive interstate system including the states in the Holy Roman Empire), legal systems (e.g. the “body” of modern Roman civil law, the feudal system, the law merchant), administrative organizations (e.g. the Protestant German bureaucratic Rechtsstaat), and even modern social scientific systems (e.g. neoclassical economics with curving supply and demand for resources and services). Systems like these are used at times by period actors, period observers, or later observers to understand people’s motives or, alternatively, broader impersonal causes of events.7
Negative outcomes and dogs that didn’t bark can also reflect systems, absences (e.g. disenfranchisement) indicating acceptance of an expectable outcome within a given system. Administrative projects were all too often ill-fitting grids which projectors and managers tried to superimpose over variegated local practices which had grown up “in the wild” (Bruno Gebhardt). Here I think of Hernando de Soto’s developmental economics theory or James Scott’s understanding of state-building as system-building.8 The anarchy of ideas and methods develops as people’s individual or self-organized local community life. Such evolutionary orders might best be thought of as more like workable patois than as systems. Functionalism is a privileged, ex post facto way of modeling steady-state activities as a system of smoothly interacting roles. This somewhat resembles the arguments made by such economic historians as Douglass North and David Landes that widespread individual freedom and well-functioning property rights have usually co-developed (and the two also frequently linked to a third thing, namely prosperity, though your mileage may vary).
Third, in some cases the best way to understand what was happening and why things changed could be called managerialism – where we identify particular interventions by state actors in pursuit of state interests. Examples here vary from creating or changing statutes, civil law procedures, and administrative rules, to tax rectification schemes or public institutions such as universities. Sometimes interventions apparently had quite unintentional downstream consequences – e.g. the Saxon rule of 1699 discussed in Chapter 6 appears to have been the key ingredient in the birth of freely circulating paper currency (in Germany), itself a major element of freedom in modern liberal society. More generally, we have to separate plans, motives, and unintended consequences in examining the actions of political entrepreneurs and managers. Sometimes patterns emerge without intentional design and plans often miscarry and create not the desired outcome but instead chaos or something else altogether. Even the creation of theoretical systems is part of this. Protoliberal bureaucrats believed that “the system of natural liberty” (liberal property law) was beneficial, so they would interpret existing things in that way or amend laws to more resemble that ideal system. What resulted was not exactly natural but rather the outcome of an administrative project. In the nineteenth century, such systems thinking had become hegemonic in the liberal version of the natural law theory of the state and in the new social sciences.9